NSBA Comments on Ambush Election Rule

April 18, 2018

The National Labor Relations Board (NLRB) has announced another extension for the public to submit comments to its request for information (RFI) on the 2014 “Ambush” Election Rule, also known as Representation-Case Procedures. The RFI asks the public to provide input on whether the 2014 Election Rule should remain, be modified, or be overturned altogether. NSBA submitted comments calling for the rule to be fully rescinded.

The RFI was originally approved in December 2017, when the NLRB was majority Republican (the NLRB has been evenly split between Republicans and Democrats since Chairman Miscimarra (R) stepped down last December). The NLRB’s controversial final rule overhauling its procedures for union elections, commonly known as the “ambush” election rule, will go into effect April 14 unless a court blocks enforcement of the new rule.

In 2014, the NLRB published the controversial ambush election rule, which was intended to decrease the time between the filing of a petition for representation and a union election. The rule, which became effective in April 2015, changed the scope of pre-election hearings and the timing and content of pre-election disclosures and required that the time between petition and election be less than thirty days. Employers and industry groups unsuccessfully challenged the rule in federal court. E.g., Associated Builders and Contractors of Texas v. NLRB, 826 F.3d 215 (5th Cir. 2016).

Under the Final Rule, the amount of time between when a union files a representation petition and an election takes place will be dramatically reduced from the current average of 38 days. The shortened time period for union elections will place a premium on rapid response by employers to union organizing activity. The rule also ended a 25-day waiting period between ordering an election and having it take place. Critics decried the rule for permitting so-called ambush elections in workplaces.

As a result, the NLRB, over the scathing dissent of two members, issued a RFI regarding whether the NLRB should retain without change, modify, or rescind the “ambush election” rule. In response to dissenting members, the Board emphasized that its request “merely poses three questions” and “does not suggest even a single specific change in current representation-election procedures.” However, the Board’s dissenting members characterized the request as part of a bad faith effort to rescind or substantially revise the rule.

The RFI, published by the NLRB on Dec. 14, 2017, is asking for public feedback and information on the 2014 rule, which overhauls the procedures for union representation by greatly reducing the amount of time between a union filing a representation petition and an election taking place.

The NLRB is seeking feedback on three questions:

  1. Should the 2014 election rule be retained without change?
  2. Should the 2014 election rule be retained with modifications? If so, what should be modified?
  3. Should the 2014 election rule be rescinded? If so, should the board revert to the representation election regulations that were in effect prior to the 2014 election rule’s adoption, or should the board make changes to the prior representation election regulations? If the board should make changes to the prior representation election regulations, what should be changed?

Responses are limited to 25 pages. You can visit the NLRB webpage for more information on how to submit your own comments. The deadline for submitting information has been extended from March 19 to April 18, 2018, after it was extended from an original deadline of Feb. 12.

Please click here to view the NSBA comment letter.

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